February 2012

The Court of the European Union has scheduled a hearing for March 20, 2012 at 09:30 in the joined cases Nelson v. Deutsche Lufthansa (C-581/10; referring court: Amtsgericht Köln, Germany) and TUI et al v. CAA (C-629/10; referring court: High Court of Justice / England & Wales, Queen's Bench Division / Administrative Court). Both references seek a revision of the "Sturgeon" judgement (judgment of Nov. 19, 2009 in joined cases C-402/07 and C-432/07) by questioning the vailidity of Articles 5-7 Reg. 261/2004 as interpreted there with regard to the principle of equal treatment the principle of proportionality the principle of legal certainty and the Montreal Convention While some more references concerning Reg. 261/2004 as interpreted in the Sturgeon judgement are still pending, it will be exciting to see how the court will solve the controversy which arose from "Sturgeon" and which in some member states led to a stay of cases seeking compensation for delay pursuant to Articles 5-7 Reg. 261/2004.

The Landgericht Hamburg (Regional Court, Hamburg, Germany) had asked the ECJ whether the protection of consumers pursuant to article 7 of the Package Travel Directive (PTD) also applied where the insolvency was attributable to fraudulent conduct on the part of the travel organiser. The Landgericht Hamburg must rule on the action brought by Mr Blödel-Pawlik against HanseMerkur Reiseversicherung AG, a German insurance company, concerning its refusal to refund the cost of package travel which did not take place because of the insolvency of the travel organiser, Rhein Reisen GmbH. The travel organiser – which, in the view of the Landgericht, had never really intended to organise the trip which Mr Blödel-Pawlik had booked for himself and his wife – became insolvent because it had embezzled the money paid by prospective travellers. It had taken out insurance against insolvency with HanseMerkur Reiseversicherung AG and had provided Mr Blödel-Pawlik with two notices of guarantee confirming that the cost of the trip would be refunded if the trip did not take place owing to the organiser’s insolvency. According to the insurance company, however, the Package Travel Directive is not intended to protect travellers against fraudulent conduct on the part of a package travel organiser. In judgment of Feb. 16, 2012, the ECJ held that the protection conferred on travellers under the PTD in the event of insolvency on the part of the package travel organiser applies even where the insolvency is attributable to the organiser’s own fraudulent conduct. The directive is specifically aimed at arming consumers against the consequences of insolvency, whatever its causes. Accordingly, the fact that the insolvency of the travel organiser is attributable to its own fraudulent conduct cannot constitute an obstacle to the refund of money paid over or to the repatriation of travellers. Source: ECJ press release 13/12 of Feb. 16, 2012 Find full text of judgment in Case C-134/11 - Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG here>>.

On September 26, 2008, appellants purchased two round-trip airline tickets from American Airline’s website. The y received an “E-Ticket Confirmation” which in the bottom line of the message stated: “A summary of Terms and Conditions of travel is available by selecting the Conditions of Carriage button below.” The referenced Conditions of Carriage clearly state that the ticket and the Conditions of Carriage “constitute the contract.” On December 21, 2008, after appellants arrived at Reagan National Airport for flight 1219, they were informed that the flight was delayed. Concerned that this delay would cause them to miss their connecting flight, appellants requested a refund or seats on another flight. However, when AA represented that, despite the delay, it would provide appellants with the connecting flight from Miami to Key West, they agreed to board the delayed flight. When flight 1219 arrived at Miami International Airport, the appellants were instructed that they had fifteen minutes to traverse the airport to arrive at the departure point of their connecting flight. They ran through the airport where construction was ongoing, and they inhaled debris. When appellants arrived at the gate, they were denied entry to the flight because they did not arrive thirty minutes prior to the scheduled flight time. AA provided appellants with no substitute flight that night but paid for a hotel room and provided them with a stipend for dinner and breakfast. On December 22, 2008, appellants boarded flight 4833 from Miami and arrived in Key West later that day. Appellants filed a five count complaint in the Circuit Court for Howard County for: Negligent Misrepresentation–Booking, Intentional Misrepresentation–Booking, Negligent Misrepresentation–Airport Departure, Intentional Misrepresentation–Airport Departure , and Intentional Misrepresentation–Miami International Airport Departure. The complaint sought USD 10,000 in compensatory damages and USD 10,000 in punitive damages for each plaintiff. Upon AA's motion, the court granted a summary judgement reasoning that the Conditions of Carriage precluded appellee’s liability for delays and/or missed connections, appellants had not provided any specific facts or shown that they suffered any damageas a natural and proximate consequence of AA's actions, and the Airline Deregulation Act, 49 U.S.C. § 40101 et seq. (the “ADA”), preempted the enforcement of Maryland tort law in this context. The appelate court held that the ADA and regulations authorized by it permitted AA to incorporate by reference the Conditions of Carriage to the “E-Ticket Confirmation” email and that they were part of the contract between appellants and AA. Pursuant to these Condtioins of carriage "no agent, employee or representative of American has authority to alter, modify or waive anyprovision of the Conditions of Carriage unless authorized in writing by a corporate officer of American." Even if an agent’s statement could be considered an oral modification of the Conditions of Carriage, such a modification would be void under thisnon-modification clause. The Conditions of Carriage also stated: “American is not responsible for or liable for failure to makeconnections, or to operate any flight according to schedule, or for a change to the schedule of any flight. Under no circumstances shall American be liable for any special, incidental or consequential damages arising from the foregoing.” and that “times shown in timetables or elsewhere are not guaranteed and form no part of this contract”. The court concluded that as there was no genuine disputes of material fact, AA was entitled to summary judgment as a matter of law. Case: Lavine v. American Airlines, Inc. (Md. Special App. Dec. 1, 2011); find full opinion here>>.

Vice-President Siim Kallas, European Commissioner for Transport today was briefed by the board of the European Cruise Council about cruise ship safety. Vice President Kallas announced that the Commission strongly supports a passenger ship safety review at IMO (International Maritime Organisation) to ensure that European citizens can expect state of the art safety measures in place - no matter where they board a passenger ship. The EU Transport Commissioner outlined the need for a twin-track approach with the IMO. Following its ongoing passenger ship safety review, the EU will either propose re-enforcing recent IMO standards or propose new EU minimum norms, some of which could form the basis for new IMO standards. The following steps are planned next: The Commission services will launch a public consultation process on the passenger ship safety, legislative review, during spring 2012 (April 2012). The Vice President will host, in spring 2012 a conference with stakeholders on the Safety of Passenger Ships. Following the Costa Concordia accident, the IMO has announced that it will consider issues relating to the safety of passenger ships, at the IMO Maritime Safety Committee meeting from 16-25 May 2012. The Commission will bring forwards, if necessary, proposals to adapt existing rules on the safety of passenger ship safety to new developments in the sector before the end of the year. The Vice President will provide more detail about the possible content and timing of his proposals before Summer 2012. Source: EUC press release RAPID IP/12/97 of 03/02/2012